You Gotta Have a License

This story would be funny if the underlying topic was not so serious and important.

I was recently interviewed by a reporter for the Atlanta Daily Report for a story regarding a local organization that had to take down a video on a website devoted to the cause of suicide prevention.  The reason for the takedown was that the organization was using a version of the Fray’s hit song “How to Save a Life” without obtaining a license from the band’s music publisher Sony Music.  Despite the organization’s worthy public service goals they could not utilize a version of the song in the video without negotiating a synchronization license. The video itself dealt with raising awareness of lawyer suicide, which I learned is a very real and serious problem; quite possibly an epidemic.

I don’t know how this association ran into this problem in the first place.  It could be that they made the common mistake of thinking that the Fair Use exception in the Copyright Act covers all non‑profit uses of music; it does not. I am routinely contacted by non-profit organizations or other services who are seeking advice in using music to promote their various causes and they are often surprised to learn that there is a cost associated with the use. The fact that a proposed use is non-commercial is only one of the four elements of the fair- use analysis in the Copyright Act.

The ironic part of the whole story is that the organization in question was  the State Bar of Georgia – and I poked fun at them by saying  “there are a lot of talented entertainment lawyers in Atlanta”. However, the Bar should be applauded for bringing this serious issue to light.

The Fray's Fray

I have been curious about the filing of a new lawsuit involving The Fray: King, Slade, Welsh and Wysocki v. Gregg Latterman and Gregg Alan Corp. in Federal Court in Colorado. The press reports made it seem as if the members of The Fray were suing their manager Gregg Latterman for somehow stealing all or part of their copyrights. However, after I reviewed the Complaint, I see that the cause of the action is much more subtle.

The manager in question is Gregg Latterman, a well-known entrepreneur, who, among other things, founded AWARE Records in 1993 and has been responsible for discovering and elevating a large number of talented artists over the past two decades. Apparently, Latterman had some sort of deal with EMI Music which gave him a share of EMI’s cut of income (and perhaps copyright interest) from any writer he brought to the company.

The suit alleges that Latterman entered into an oral management agreement with The Fray in November 2004 and helped sign the band to EMI in July of 2005. The suit claims that the oral management agreement was reduced to writing in 2007.

The suit DOES NOT claim that Latterman took any portion of the band’s publishing. Rather, it claims that as a manager, Latterman breached his fiduciary obligation to inform the band of his deal with EMI. The suit references a clause in the Management Agreement which prohibits the manager from commissioning any “engagement or agreement under which Artist is employed by or otherwise engaged by Manager or any firm or corporation owned by, controlled by or affiliated with Manager.”

As one would expect, the causes of action spelled out in the Complaint are fraud and misrepresentation, breach of fiduciary duty, unjust enrichment, fraud in the inducement and breach of contract.

As is often the case, I am sure the backstory is fascinating. It is rare that disputes break out in public involving people with profiles as high as this. I am sure that one of the real issues here is leverage. When The Fray entered into their agreement with Latterman in 2004, they had little bargaining power and were in need of someone connected enough to get them noticed by and then signed to a major label and major publisher. Once a certain level of success is reached, the dynamic often changes.

An interesting question raised by The Fray’s lawsuit is how much they really knew about the relationship between Latterman and EMI. In the pleadings, they claim they thought he was receiving a “finder’s fee” from the company, and that in fact may be the case, albeit a highly lucrative one. It does seem hard to believe that were not somehow on notice as to Latterman’s deal with EMI.

However, this is also a cautionary tale for managers who attempt to fill different roles in this new environment. Nearly every management agreement ever drafted contains the above-described language prohibiting “double dipping” and managers should not attempt to circumvent the effect of the clause; they should be upfront in disclosing these arrangements to their artists.

I am betting this case will settle quickly. But one never knows…